Squishmallows and Skoosherz plushies go head-to-head in court
Fast! What is the difference between Squishmallows and Skoosherz?
Time is up. Don't worry if you can't think of an answer. The companies behind the colorful cuddly toys are involved in a lawsuit this week about what actually distinguishes the toys from each other.
Kelly Toys, which said it launched the Squishmallows plushies in 2016, filed a lawsuit against Build-A-Bear on Monday over its Skoosherz line, which launched last month in anticipation of Valentine's Day. Build-A-Bear has filed its own lawsuit against Kelly Toys.
Instead of “creating its own unique concepts and product lines,” read the complaint filed by Kelly Toys in the U.S. District Court for the Central District of California, Build-A-Bear built a similar product when it, the complaint added “decided that it would be easier to simply copy, imitate and capitalize on the popularity and goodwill of Squishmallows.
Kelly Toys argues in its lawsuit that Build-A-Bear imitated Squishmallows stuffed animals “in hopes of confusing consumers into purchasing their products instead of Squishmallows.”
In a complaint against Kelly Toys in the U.S. District Court for the Eastern District of Missouri, Build-A-Bear argued Monday that its line does not infringe on any trademark.
Squishmallows' parent company says the toys are similar
Kelly Toys argued that the Build-A-Bear line shares many similarities with Squishmallows toys, including “imaginative representations of animals/characters; simplified Asian style Kawaii faces; embroidered facial features; distinctive and non-monochrome colors; and velvety soft, velour-like exterior.”
The company has claimed a violation of the Lanham Act. which protects trade dress, the legal concept that refers to the look and feel of a product, making it unique from other products.
The company also points out that Build-A-Bear has deviated from its original mission of helping people build their own toys. Instead, the lawsuit alleges, Build-A-Bear copied Kelly Toys' plush toys without the license or other permission to do so, and even uses one of the same suppliers that produces Kelly Toys' products.
The name of Build-A-Bear's line was also chosen, the company claimed, to confuse consumers who are actually looking for Squishmallows, which are often called “Squish.”
Jazwares, the parent company of Kelly Toys that is controlled by Berkshire Hathaway, said in a statement from the law firm representing it, Hueston Hennigan LLP, that “Build-A-Bear has gone to great lengths to create the distinct look, feel, and the tactile design of Squishmallows to blatantly and deliberately capitalize on Squishmallows' global success.”
How has Build-A-Bear responded?
Build-A-Bear, incorporated in St. Louis, alleged in its complaint that the characteristics that Kelly Toys claimed were part of its trade image were not consistent across the Squishmallows product line.
The company said it started by helping buyers build their own toys, but explained it also sold plush toys that had previously been stuffed for years. The new toy is not an imitation of Squishmallows, the company argued, but an imitation of some of its own original and popular stuffed animals. For example, the Skoosherz Pink Axolotl is based on the original Pink Axolotl.
The company also argued that many plush toys existed before Squishmallows came to market, and that many of them had the features that Kelly Toys said were the trademark style, including a line of Squishable plush animals released in 2008 and Yummy World Kidrobot products released in 2015.
Attorneys for Build-A-Bear did not immediately respond to a request for comment Wednesday.
The Rise of Squishmallows
Squishmallows exploded in popularity during the coronavirus pandemic. Videos about the toys have been viewed more than 11 billion times on TikTok and fans have posted about the toys on Instagram more than 11 million times, according to Kelly Toys' complaint.
The company counts Lady Gaga and Kim Kardashian, both of whom have posted about the toys on their social media accounts, among its fan base.
“Squishmallows sales have increased more than 300 percent in 2022 alone, with global sales increasing to more than $200 million,” the complaint reads.